The main rules that govern wills date back to the Victorian era: the Wills Act 1837 and the "golden rule" to assess testamentary capacity from the case of Banks v Goodfellow in 1870. At the time the Wills Act was introduced, married women were not entitled to retain their own wages for themselves nor inherit money. These rights were only granted in 1870 under the Married Women’s Property Act. Despite their vintage, and the significant shift in both law and attitudes since the Wills Act, these rules have largely stood the test of time.
However, fundamental societal changes have continued to take place, and it is in light of these that the Law Commission has undertaken its Modernising Wills Law project. The Law Commission's report (the Report) was published on 15 May 2025 and includes 31 recommendations to ensure that the law of wills remains fit for purpose. The project aimed to achieve three key objectives: (i) to support testamentary freedom; (ii) to protect testators from undue influence and fraud; and (iii) to enhance clarity and certainty in the law.  
The recommendations look at all aspects of wills law and take account of 21st century living. We do not intend to break down each recommendation, instead we propose to focus on three specific areas and explore their potential impact. 
Throughout, we bear in mind that the Report is being reviewed by the Government with no set date at this stage for a response. The recommendations may not come into force and, in the meantime, we continue to operate within the current legislation and rules applied by case law.   
Law Commission recommendation: one test for capacity 
The Banks v Goodfellow test for testamentary capacity requires the testator, at the time the will is made, to: 
- understand the nature of the act of making a will and the effect of doing so; 
- understand the extent of their property; 
- consider the claims of potential beneficiaries; and 
- not have a disorder affecting their decisions. 
The test is entrenched in the law of wills and provides the framework within which people can confirm whether a testator has validly made a will.  
The Mental Capacity Act 2005 (the MCA) came into force in 2007 and was introduced to ensure that people who cannot make decisions for themselves are protected. In the 13th century it was the role of the ruling king or queen to make decisions for people who could not do so for themselves. Before the MCA, there were no clear laws for people who lacked the ability to make decisions for themselves. The MCA provides a statutory framework for assessing mental capacity in various contexts, including making a will. The MCA introduces a more structured approach: 
- Every adult is presumed to have capacity unless proven otherwise. 
- Individuals should be given all practicable support to make decisions. 
- Making an unwise decision does not equate to lack of capacity. 
A two-stage test was introduced: 
- Diagnostic: is there an impairment, or disturbance in, the functioning of the mind or brain? 
- Functional: does the impairment mean the person is unable to understand, retain, use or weigh information relevant to the decision, or communicate the decision? 
In the law of wills it is important for both tests to be adopted such that someone must meet the Banks v Goodfellow test in order to make a will as well as the requirements of the MCA. 
At present there are in effect two tests for capacity to make a will. In contentious probate cases, the (arguably stricter) Banks v Goodfellow test is applied, but when applying to the Court of Protection to make a statutory will, the Court will look to the test under the MCA. The Law Commission has proposed that the current tests be replaced by a single test, based on the MCA requirements, which would mean applying the two-stage diagnostic and functional test from the MCA to all will-making situations. The proposed changes to the capacity tests for will-making remain arguably unclear. While there is logic in establishing the proposed single MCA test for both testators making a will and statutory wills with an assumption of capacity as the starting point, the proposed accompanying Code of Practice intends to refer to the test in Banks v Goodfellow and relevant case law. In the 2023 case of Baker v Hewston1 HHJ Tindal, referencing the Law Commission consultation, noted that while the Banks and MCA tests are not identical, they are broadly consistent. It would seem however that there remains significant potential for dispute, particularly in retrospective assessments post-death. Different outcomes under the varying tests could undermine the clarity the proposed changes aim to achieve. 
Law Commission recommendation: disincentivise predatory marriage 
A further area of focus relates to the current rule that a testator's will is automatically revoked when they get married or form a civil partnership. The Report recommends that this automatic revocation should be abolished. At present under the Wills Act 1837, a testator's will is automatically revoked on marriage. In 1837, this may well have made good sense in protecting spouses who, if no new will is made after the marriage, would take first under any intestacy. However, in the modern era, this has been argued by some to be an overly paternalistic and anachronistic rule and one which opens the door to predatory marriage. Predatory marriage involves a usually older, more vulnerable party being targeted by someone largely driven by the prospect of financial gain. The marriage is frequently entered into on the basis of the new spouse intending to take advantage of the vulnerability (and sometimes incapacity) of the other party during their lifetime, as well as inheriting upon their death. We have explored the issues concerning predatory marriage previously in an episode of the Mishcon Academy Digital Sessions podcast and in an article for the Law Society.
One of the reasons the Law Commission seeks to abolish the rule that marriage revokes a will is to "remove any incentive" for anyone to contemplate it. The proposed abolition of this rule aligns with the first objective of the project, namely, to protect a testator from undue influence or fraud, and serves to target potential exploitation.  
An issue that will arise from the abolition of this rule could be that people miss out on inheritance tax (IHT) exemptions. An estate, broadly, will be subject to IHT if it exceeds £325,000. Any assets passing to a surviving spouse or civil partner will be free of IHT due to the 100% spousal exemption. Typical estate planning implemented in a will provides that the surviving spouse receives the estate on the first death, ensuring that the survivor has funds on which to live as well as making use of the IHT spousal exemption. If the deceased had made a will before they were married giving, say, their estate to their siblings, but did not update their will following their marriage, it will not be possible to apply the spouse exemption unless a successful claim to secure a benefit for the survivor is brought (which we will explore further below).  Under the current rules, the marriage would have revoked the will and the deceased's estate would have passed under the intestacy rules to the survivor (a significant proportion of which would pass to the new spouse/civil partner). The new rules will mean that any pre-existing will stands, whether that benefits the new spouse/civil partner or not. 
For more information on the intestacy rules please see our earlier article.
The proposed changes are a welcome step towards protecting vulnerable individuals from financial abuse, though they are unlikely to completely resolve family disputes. Under the Inheritance (Provision for Family and Dependants) Act 1975, a spouse or civil partner who believes they have not received reasonable financial provision from an estate, whether under a will or intestacy, can bring a claim for provision from the estate. Notably, for spouses or civil partners, such claims are not limited to maintenance. The court considers several factors under section 3 of the Act, including the claimant's needs and resources, the size of the estate, and any other relevant matters, such as conduct. Importantly, the court's jurisdiction to hear these claims cannot be ousted. In cases involving spouses or civil partners, the "divorce fiction" applies, meaning the court considers what the financial position would be if the marriage had ended in divorce rather than death, making the length of the marriage a relevant factor. Whether a claimant receives a substantial award depends heavily on the case's specifics, but the risk of litigation persists. 
It is crucial to note that under current law, if a deceased person had a will leaving everything to their adult children, and that will was revoked upon a subsequent marriage, the children would face significant challenges in securing an award under the 1975 Act, as claims are limited to maintenance needs. Despite 42% of surveyed Law Society members disagreeing with changing the law, we view this as a positive step towards protecting vulnerable testators and supporting testamentary freedom. 
The Law Commission was candid in acknowledging that changing the law in respect of wills will not of itself prevent predatory marriage. A party seeking to exercise financial abuse towards a more vulnerable partner or spouse may continue to do so during their lifetime and, if the marriage does not revoke a will, they will still be in a preferential position when making any application under the Inheritance (Provision for Family and Dependants) Act 1975. The Law Commission did not agree with proposals made by some respondents to the consultation that the test for a party having capacity to marry should be made more stringent, noting that to do so would potentially operate as an unfair, unnecessary and discriminatory bar against the disabled, given that the mere fact that a person has been diagnosed with dementia, or has any other mental impairment, does not necessarily mean that they lack capacity to marry or form a civil partnership. However, a change in the law reducing the benefits of predatory marriage will be welcomed by those who have campaigned to bring an end to this practice. 
Law Commission recommendation: empowering children 
The proposal in this regard, in line with the objective of supporting testamentary freedom, is to enable will-making for 16 year olds (the current age threshold being 18) and therefore to align with the law on mental capacity (as the MCA governs capacity for those aged 16 and over). There is also a potential opportunity for those under the age of 16 to make a will, with the authority of the court. 
When dealing with a 16-year-old suffering from a degenerative disease or terminal illness, there may be compelling reasons for them to avoid the intestacy rules or to have control over how their funeral is conducted. Such individuals might have received a compensation payment or possess other assets, and could be estranged from or have no relationship with a parent who might otherwise inherit under intestacy rules. They may wish to direct their assets elsewhere, likely to other family members or causes that they feel strongly about. Additionally, some 16-year-olds may have accumulated significant wealth through social media platforms, esports, or as influencers, and could benefit from having a will as part of their financial management strategy.  
However, at present, the law does not give those under 18 the same property rights as adults. A child cannot currently hold the legal (as opposed to the beneficial) interest in land. Likewise, the law in respect of a child entering into a contract is more protective than that in respect of adults, with children able to cancel certain contracts at any time before they reach their majority (i.e. the age of 18). On the other hand, per section 8 of the Family Law Reform Act 1969, a child over the age of 16 can consent to medical treatment as of right. The Law Commission acknowledged the differing treatment of those under 18, but considered decisions about property and the disposal of one’s body are more akin to medical and social welfare decisions than those about property. Given that the MCA applies to those over the age of 16, and the Law Commission's recommendation that testamentary capacity align with the test for capacity under the MCA 2005, they considered it appropriate that those who are 16 and over should be able to create a valid will. 
There are, however, some concerns about this approach. The majority of those who are 16 – 18 still live with at least one parent. While the Law Commission proposes to reform the law on undue influence, making it easier to have a will set aside on the basis of undue influence, children often remain dependent on their parents in a way that is almost unique amongst family relationships. The potential for a child to feel pressured (even if that pressure does not reach the threshold of undue influence) to make a will in favour of a parent, or to exclude a parent who is not living with them, may be considerable. It also potentially raises the unedifying spectre of separated parents "competing" for greater financial provision from a wealthy child.  
At present, under the Children Act 1989, an aspect of parental responsibility is the duty to administer a child's property for the benefit of the child. Parental responsibility lasts until the child is 18. Should a child aged 16 or 17 make an otherwise valid will, but one that is considered not to be in their "best interests", a parent with parental responsibility could potentially make an application to the court for a specific issue order to allow a settlement to be made of the child's property, if doing so would be in the child's best interests. This could potentially lead to a court overriding the child's intentions regarding their own property, should those be considered not to be in their best interests – a restriction that adult testators do not face.  
The Report further recommends that the Family Court should have power to authorise children under 16 to make a will, provided they are assessed as being Gillick competent by the Family Court. The concept of Gillick competency relates to the ability of a child to make decisions (originally as to medical treatment) if "of sufficient discretion to enable him or her to exercise a wise choice in his or her own interests2", which in practice tends to amount to them being sufficiently capable of understanding the decision, the implications of the decision, the risks associated with the decision, the alternatives, and of expressing their own wishes. The child's maturity is an important factor in assessing whether they are Gillick competent. The Law Commission was of the view that, in the context of the child being judged competent to make a will, the substance of what the child will need to be able to understand will align with the test for testamentary capacity. While the intentions of this recommendation are to enable children who are of sufficient maturity, and who e.g. have been diagnosed with a terminal illness, to also create a will, the success of such provision will rely on widespread knowledge among young people (and those with responsibility for them) that such an option is available. We believe, in practice, this provision will have limited scope. 
The proposals do raise grounds for concern. Will writers will need to carefully manage their relationships with younger clients, taking into account safeguarding best practice in addition to understanding the rules of the MCA, and how they operate with children in order to achieve the young person's objectives. Any adviser would need to satisfy themselves that a child under 18 has the requisite capacity to instruct a solicitor, enter into a retainer and then to provide clear instructions, free from potential undue influence, for a will (applying the new test for capacity under the MCA). A potentially onerous task and one, in itself, which could risk conflict from excluded family members, at least in cases where the court is not approving the contents of that will.  
Conclusions 
As the government is yet to comment substantively on the Report, people will need to work within the confines of the Victorian rules when preparing their wills for the time being. However, it is highly likely that at least some of the recommendations will be adopted, and we await future consultations on the proposals